Most employers with union bargaining obligations are familiar with the duty to furnish information. Unions submit information requests in a wide variety of settings, from grievance processing and arbitration, to “effects” bargaining over business reorganizations and requests made in connection with contract negotiations. The most common features of these requests are that they are time consuming and frustrating for employers.

On May 17, 2011, NLRB Acting General Counsel Lafe Solomon issued a “Guideline Memorandum” (pdf) to the agency’s Regional Offices concerning the duty to provide information in connection with bargaining. The twelve-page memorandum provides both an overview of general principles and cases applicable to “information request” cases and a glimpse into probable NLRB investigation and enforcement strategies. Of particular interest to employers will be the section discussing the duty to furnish specific information in response to claims made at the bargaining table.

Experienced negotiators have long been aware of the importance of avoiding “pleading poverty” in bargaining. A company that tells the union “we can’t afford to pay” what the union is demanding will be obliged on request by the union to open up all its financial records so that the union can examine the validity of the company’s claim. Other statements, such as “we don’t want to pay that,” generally do not require the production of financial records to the union. Less well known is the fact that statements that do not directly “plead poverty” may nevertheless require an employer to produce other kinds of financial records and data.

The Guideline Memorandum reminds the Regional Offices that there exists an obligation to provide “more specific information made relevant by other bargaining claims” that stop short of a plea of poverty or inability to pay. For example, an employer who asserted it needed bargaining concessions in order to “remain competitive” was obliged to provide competitor data, labor costs, and other information relevant to the “competitiveness” claim. Guideline Memorandum, p. 8, discussing Caldwell Mfg. Co., 346 NLRB 1159 (2006). Similarly, an employer who justified its proposals by stating it was unable to obtain jobs it bid upon because the union’s wages and benefits made it uncompetitive was obliged to produce information regarding its job bids, including such items as information concerning competitors, labor costs, production costs, restructuring studies and income statements. A-1 Door and Building Solutions, 356 NLRB No. 76 (2011).

Issuance of the Guideline Memorandum suggests that the NLRB’s investigators will be paying closer attention to both the nature of claims made at the bargaining table and the scope of any ensuing information requests. According to the memo, the guiding principle in bargaining should be that negotiators should not make claims in bargaining that they will not want to back up with documentation: “[C]laims important enough to make in the give and take of bargaining are important enough to require proof of accuracy.” Quoting NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956), the GC’s memo advises: “Good-faith bargaining necessarily requires that claims made by either bargainer should be honest claims.”

Photo credit: Alex Nikada